This article provides a brief introduction to the law of torts and considers the differing burdens of proof between tort and criminal law as well as the types of torts.
A tort is a civil wrong, other than a breach of contract that is recognized by the courts and will be compensated by damages. Some torts are also criminal acts that can be prosecuted by the state. The essential difference between a tort and a crime is that a tort involves a legal dispute between individual citizens and a crime involves the prosecution by the state of a person that has broken a law. A classic example is the OJ Simpson case in which OJ was found not guilty in the criminal courts but was found liable in the civil courts. The result being that OJ didn’t end up going to jail but he did end up owing millions of dollars in damages.
BURDEN OF PROOF
This raises the obvious question of how can an award of damages be made on similar if not identical evidence on which a not guilty verdict was granted? The answer lies in the burden of proof that exists in the relevant situations. In the civil courts the burden of proof is the balance of probabilities. Essentially the judge or jury weighs the evidence and if the scales tip towards the Plaintiff (the person making the claim) then damages are awarded. In the criminal courts, the burden of proof is guilt beyond a reasonable doubt. Therefore the judge or jury must decide that on the evidence there is no reasonable alternative than that the accused committed the crime in question.
INTENTIONAL TORTS
Tort law essentially breaks down into two categories: intentional torts and negligence. Intentional torts (as the title suggests) involve the intentional acts of the Defendant in bringing some harm to the Plaintiff. These torts include battery, assault, trespass, false imprisonment, defamation and nuisance. Since these torts require the intent of the Defendant for the act, the questions of volition and cognition both need to be addressed. In short, the Defendant has to have known what he/she was doing and has to have intended the action, but not necessarily the results of the action.
NEGLIGENCE
Negligence was not always recognized as an actionable tort. For policy reasons it was long considered too broad and problematic to hold members of society legally liable for the unintended results of their reckless behaviour. However, the 20th century saw the universal emergence and development of negligence law in common law jurisdictions worldwide as courts were able to develop legal mechanisms for holding people accountable for their negligent acts.
DAMAGES
Tort law and contract law are the two pillars of civil litigation under the common law. Essentially if you are suing someone you are claiming either that they broke their legal agreement with you or that they wronged you under some head of tort law. In both instances, damages are awarded to compensate the Plaintiff for the harm that has been suffered. Damages are a monetarization of harm and therefore can seem somewhat arbitrary particularly in the area of torts where there is no written agreement as to the conduct between the parties. A Plaintiff will obviously estimate their losses at a different level than a Defendant and judges and juries are left to analyze medical reports, actuarial figures, and past judgements in similar circumstances to determine what a fair amount would be. However, in the end there is no way to make the analysis of damages fully objective and awards invariably depend on the ability of counsel to get their client’s position across and the temperament of the decision maker.
This article is legal commentary only and should not be taken as legal advice. Consult a lawyer in your area with any particular legal questions that you may have.
